STATE OF NEW JERSEY VS. DERRICK M. MILLER STATE OF NEW JERSEY VS. ARTHUR L. THOMPSON (11-08-1559, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4022-12T1
A-4055-12T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DERRICK M. MILLER,
Defendant-Appellant.
______________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent
v.
ARTHUR L. THOMPSON, a/k/a NASHEED,
Defendant-Appellant.
______________________________
Submitted May 11, 2016 – Decided May 10, 2017
Before Judges Koblitz, Kennedy, and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 11-
08-1559.
Joseph E. Krakora, Public Defender, attorney
for appellants (Susan Remis Silver, Assistant
Deputy Public Defender, of counsel and on the
briefs for appellant Derrick Miller; Jack L.
Weinberg, Designated Counsel, on the briefs
for defendant Arthur Thompson).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent
(Maria I. Guerrero, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the briefs).
Appellant Arthur Thompson filed a pro se
supplemental brief.
Appellant Derrick Miller filed a pro se
supplemental brief.
PER CURIAM
Co-defendants Derrick Miller and Arthur Thompson appeal their
convictions and sentences. Defendants were charged with first-
degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree
conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-
3(a)(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-
3(a)(3); first-degree attempted murder, N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3; first-degree robbery, N.J.S.A. 2C:15-1; second-
degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.
2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2(b)(1); second-
degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A.
2 A-4022-12T1
2C:18-2(b)(1); second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(f); and second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree
aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4).
Thompson was also charged with one count of second-degree
possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b).
The court dismissed the charges of conspiracy to commit murder and
conspiracy to commit burglary. The jury found defendants guilty
on all counts, except for the charges against Thompson for
attempted murder and aggravated assault.
The court sentenced defendants to life imprisonment on the
murder convictions, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Also, the court merged some of the remaining
charges into the murder convictions and, on others, imposed
sentences that run concurrent to the life sentence. Defendants
appealed their convictions and raise fifteen separate issues.
Miller raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN NOT SUPPRESSING THE
IDENTIFICATION OF DEREK [sic] MILLER BECAUSE
THE STATE FAILED TO RECORD THE COMMUNICATIONS
BETWEEN THE POLICE AND THE WITNESS AS REQUIRED
BY STATE V. DELGADO.
POINT II
THE TRIAL COURT IMPROPERLY DENIED SUPPRESSION
OF THE OUT-OF-COURT IDENTIFICATION WHICH
RESULTED FROM AN UNDULY SUGGESTIVE AND
3 A-4022-12T1
UNRELIABLE SHOW[-]UP PROCEDURE AND WHICH
VIOLATED THE DEFENDANT'S [FOURTEENTH]
AMENDMENT RIGHTS.
POINT III
THE TRIAL COURT ERRED IN NOT STRIKING EXPERT
TESTIMONY BASED ON HYPOTHETICAL FACTS NOT
ADDUCED AT TRIAL AND NOT OFFERED WITH A
REASONABLE DEGREE OF CERTAINTY.
POINT IV
THE TRIAL COURT IMPROPERLY DENIED THE MOTION
FOR A MISTRIAL BECAUSE THE PROSECUTOR'S
SUMMATION CONTAINED FACTS UNSUPPORTED BY THE
EVIDENCE WHICH PREJUDICED THE DEFENDANT'S
RIGHT TO A FAIR TRIAL. (Partially raised)
POINT V
DEFENDANT'S CONVICTION MUST BE OVERTURNED
BECAUSE THE INDICTMENT CHARGED HIM WITH ACTING
WITH ONE PERSON, BUT FOR THE FIRST TIME IN
SUMMATION, THE PROSECUTION ARGUED THAT
DEFENDANT COMMITTED THE CRIME WITH OTHER
PARTIES, GIVING DEFENDANT NO OPPORTUNITY TO
DEFEND.
POINT VI
AFTER THE JUDGE RECEIVED INFORMATION THAT
EXTRANEOUS INFLUENCES MAY HAVE INTERFERED WITH
THE JURY'S ABILITY TO REACH AN IMPARTIAL AND
FAIR VERDICT, THE TRIAL JUDGE ERRED IN DENYING
DEFENDANTS' MOTION FOR A MISTRIAL AND ERRED
IN DENYING DEFENDANTS' MOTION, IN THE
ALTERNATIVE, THAT ALL JURORS BE POLLED.
POINT VII
THE TRIAL COURT IMPOSED AN EXCESSIVE LIFE
SENTENCE WITHOUT PROPERLY WEIGHING THE
AGGRAVATING AND MITIGATING FACTORS.
In his pro se brief, Miller raises the following additional
points.
4 A-4022-12T1
POINT I
THE TRIAL JUDGE INCORRECTLY INSTRUCTED THE
JURY ON THE STATE['S] BURDEN OF PROOF ON
ATTEMPTED MURDER, POINTING A FIREARM, AND
BURGLARY. (NOT RAISED BELOW)
POINT II
THE TRIAL JUDGE ERRED IN FAIL[ING] TO CHARGE[]
AGGRAVATED MANSLAUGHTER AS A LESSER-INCLUDED
CHARGE. (NOT RAISED BELOW)
POINT III
THE CUMULATIVE ERRORS COMMITTED IN THE
DEFENDANT'S TRIAL VIOLATED HIS [FOURTEENTH]
AMENDMENT RIGHT TO DUE PROCESS AND A FAIR AND
IMPARTIAL TRIAL.
Thompson raises the following arguments:
POINT I
THE COURT DEPRIVED THE DEFENDANT OF HIS STATE
CONSTITUTIONAL RIGHTS WHEN IT REFUSED TO
SUPPRESS THE IDENTIFICATION OF CO-DEFENDANT
MILLER DUE TO THE STATE'S FAILURE TO COMPLY
WITH THE DOCUMENTATION REQUIREMENTS PURSUANT
TO STATE V. DELGADO [].
POINT II
THE MOTION COURT ERRED WHEN IT DENIED THE WADE
HEARING. THE OUT-OF-COURT IDENTIFICATION
PROCEDURES WERE UNDULY SUGGESTIVE AND
UNRELIABLE IN VIOLATION OF THE DEFENDANT'S
FOURTEENTH AMENDMENT DUE PROCESS RIGHTS.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE DEFENDANT'S MOTION FOR SEVERANCE.
POINT IV
THE STATE DEPRIVED THE DEFENDANT DUE PROCESS
OF LAW AND A FAIR TRIAL WHEN IT CHANGED ITS
THEORY OF THE CASE IN SUMMATION. THE
PROSECUTOR'S ACTIONS CONSTITUTED
PROSECUTORIAL MISCONDUCT. FUNDAMENTAL
FAIRNESS DEMANDS THAT THIS COURT REVERSE THE
5 A-4022-12T1
DEFENDANT'S CONVICTIONS AND REMAND FOR A NEW
TRIAL.
POINT V
THE STATE'S MISUSE OF THE EXPERT TESTIMONY
THROUGHOUT THE TRIAL CONSTITUTED
PROSECUTORIAL MISCONDUCT DEPRIVING THE
DEFENDANT OF A FAIR TRIAL. (Partially Raised
Below)
A – The Gunshot Residue Expert
B – The Soil Expert
C – Use of Forensic Scientist Gainsborg
as both lay opinion and expert
witness.
POINT VI
THE PROSECUTOR'S COMMENTS DURING SUMMATION
CONSTITUTED PROSECUTORIAL MISCONDUCT
DEPRIVING THE DEFENDANT OF A FAIR TRIAL. THE
COURT ERRED IN NOT GRANTING DEFENDANTS' MOTION
FOR A MISTRIAL. THE CURATIVE INSTRUCTIONS
GIVEN ON TWO OF THE MOST EGREGIOUS COMMENTS
DID NOT ADEQUATELY REMEDY THE HIGHLY
INFLAMMATORY AND PREJUDICIAL COMMENTS MADE BY
THE PROSECUTOR.
A – The Blood Evidence Shouting from the
Grave
B – The Boot Print Impression Size
C – Comments on Evidence Not Adduced at
the Trial
POINT VII
THE COURT ERRED WHEN IT FAILED TO SUA SPONTE
CHARGE THE LESSER INCLUDED OFFENSES OF
AGGRAVATED MANSLAUGHTER AND RECKLESS
MANSLAUGHTER. (Not Raised Below)
6 A-4022-12T1
POINT VIII
THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH
DID NOT TAKE INTO CONSIDERATION ALL
APPROPRIATE CODE SENTENCING PROVISIONS.
Thompson raises the following additional points.
POINT I
THE COURT ERRED WHEN IT DENIED THE DEFENDANT'S
MOTIONS FOR JUDGMENT OF ACQUITTAL AND THEN
WHEN IT DENIED THE DEFENDANT'S MOTION FOR A
NEW TRIAL.
POINT II
THE COURT ERRED WHEN IT DENIED THE DEFENDANT'S
PRO SE MOTIONS TO DISMISS THE INDICTMENT AS
IT IS PREMISED UPON INACCURATE INFORMATION AND
ADMITTEDLY FALSE TESTIMONY.
POINT III
THE COURT SHOULD HAVE GRANTED THE DEFENDANT'S
MOTIONS TO EXCLUDE THE TESTIMONY OF THOMASINA
PAIGE FOR THE PROSECUTOR'S FAILURE TO PROVIDE
DETAILED SUMMARIES OF THE INTERVIEWS THAT THEY
HAD WITH THE WITNESS IN PREPARATION FOR TRIAL.
POINT IV
THE COURT ERRED IN DENYING THE MOTION FOR
MISTRIAL BASED ON THE IMPACT OF SUPERSTORM
SANDY ON THE COURSE OF THE TRIAL. IN THE
ALTERNATIVE, THE COURT ERRED IN FAILING TO
INQUIRE OF ALL OF THE JURORS WHETHER AND HOW
THE STORM WAS IMPACTING THEM AND THEIR ABILITY
TO RENDER A FAIR AND IMPARTIAL VERDICT.
In a supplemental letter brief, Thompson raises the following
additional point:
POINT IX
THE RECENT PUBLISHED APPELLATE DIVISION
DECISION IN STATE V. VICTOR GONZALEZ, []
MANDATES REVERSAL OF THE DEFENDANT'S
CONVICTIONS FOR THE SAME REASONS EXPRESSED IN
THAT CASE: THE REPEATED US[E] OF "AND/OR"
7 A-4022-12T1
LANGUAGE IN THE ACCOMPLICE LIABILITY JURY
INSTRUCTION AND IN THE CONSPIRACY INSTRUCTION
AS WELL AS THE FELONY MURDER INSTRUCTION COULD
HAVE EASILY LED TO AN IMPROPER VERDICT FROM
IMPROPER JURY DELIBERATIONS. (Partially
Raised Below)
After careful consideration of the arguments in light of the
facts and the law, we affirm.1
I.
Defendants' convictions arose out of a home invasion and
murder that occurred on January 18, 2010, at a residence in
Irvington, New Jersey. The evidence at trial established that the
home was a two-family house where an adult brother and sister
lived with their respective families. The sister, M.B.2, lived on
the first floor with her son, J.B., her daughter, and her
boyfriend, the victim, A.H. The brother, D.B., lived on the second
floor with his daughter, K.B., and his granddaughter.
In the late evening on January 18, 2010, M.B. heard a banging
noise and gunshots. She locked herself in the bathroom and called
911. K.B. was doing homework in her living room on the second
floor and she heard what sounded like glass shattering. She went
downstairs and saw A.H. on his knees with two men standing on
1 We have consolidated these appeals for the purposes of this
opinion.
2 We use initials to protect the privacy interest of the victims
and witnesses.
8 A-4022-12T1
either side of him. One of the men had A.H. in a headlock and
another man was pointing a gun at A.H. One of the men saw K.B.
and pointed the gun at her, prompting her to retreat upstairs.
J.B. was in his downstairs bedroom when he first heard a
banging noise. He then went to his door and saw a man hop over the
counter into the kitchen area. He could not see the man's face,
but he saw a gun in the man's hand. J.B. closed his bedroom door
and heard a gunshot and then heard three more gunshots. He escaped
by climbing out the window.
D.B. was upstairs in bed when he heard a scuffle erupt in the
downstairs apartment. Upon going downstairs, D.B. saw two
individuals in the home, one wearing a "netted mask" and pointing
a gun at A.H. and another holding A.H. by the neck. The man
pointed the gun at D.B. and told him to "get the fuck out of
there." D.B. thereafter heard a gunshot and ran outside. As he
hid behind bushes, he heard more gunfire and saw two men get into
a car and drive away. Prior to their departure, D.B. was able to
see the face of one of the assailants.
Almost immediately, the police responded to the home. D.B.
pointed in the direction of the car and exclaimed to the police
that "the car is right there[,]" and "that's them, that's them."
The responding police officer testified that he followed the car
and pulled it over several blocks from the home. The males in the
9 A-4022-12T1
vehicle were later identified as Miller and Thompson. Thompson
was arrested on an outstanding warrant at the scene. Miller stayed
with the vehicle.
Shortly after pulling the car over, the police brought D.B.
to the scene. When D.B. arrived, Miller was standing by the car
in handcuffs. D.B. voluntarily identified Miller to the police,
saying "[t]hat's him." D.B. initially said he identified Miller
by his clothing, but then retracted this statement and testified
that he did not tell the police at the time that he could identify
Miller by his face because he feared for his family's safety. The
detectives who escorted D.B. to the scene testified that neither
of them said anything to D.B. during the ride over, and that D.B.
made his statement voluntarily. One of the detectives prepared a
report memorializing the positive identification, but failed to
include the words D.B. used.
Back at the home, the police found A.H. lying dead on the
basement floor, having been shot three times. The police conducted
a series of follow-up investigations and tests involving DNA
sampling, soil sampling, gunshot residue, and blood splattering.
Prior to trial, the defendants moved to suppress the out-of-
court identification by D.B. Thompson also moved to dismiss the
10 A-4022-12T1
indictment and sever the trials. After conducting a Wade3 hearing
and taking testimony, the court denied the defendants' motions.
As to the motion to suppress, the court found that the show-up,
although "inherently suggestive," was neither "necessarily
impermissibly suggestive nor . . . necessarily subvert[ed] the
reliability of the identification." The defendants failed to
"show a scintilla of probative evidence relating to
[suggestiveness] that would undermine the identification."
Thereafter, the court held a twelve-day jury trial. Among
other evidence, the State proffered numerous witnesses and expert
opinions, including a forensic scientist specializing in serology
(the study of blood serum) and a forensic scientist specializing
in DNA analysis. The serology expert found traces of blood on
Miller's white thermal shirt and dark blue-gray pants. The State's
forensic scientist analyzed the DNA samples from this clothing and
concluded the blood on the clothing was that of the victim, A.H.
As we noted earlier, following the jury's verdict, the court
sentenced both Miller and Thompson to life imprisonment subject
to NERA. Specifically, Miller received life imprisonment with
thirty years parole ineligibility on the first degree murder count,
subject to NERA; fifteen years for armed robbery with five years
3 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
11 A-4022-12T1
parole ineligibility, subject to NERA; twenty years for attempted
murder, with ten years parole ineligibility, subject to NERA;
eighteen months for aggravated assault; and ten years for unlawful
possession of a weapon, with five years parole ineligibility. All
counts were to run concurrent with the murder count. The court
merged the felony murder, conspiracy to murder and possession of
a firearm for an unlawful purpose counts into the murder
conviction, and the burglary count into the felony murder
conviction.
Thompson received life imprisonment with thirty years parole
ineligibility on the murder conviction, subject to NERA; fifteen
years for armed robbery with five years parole supervision, subject
to NERA; and ten years for unlawful possession of a weapon, with
five years parole ineligibility. The felony murder, conspiracy
to commit murder and possession of a weapon for an unlawful purpose
convictions were merged into the murder conviction, and the
burglary conviction merged into felony murder. All counts were
to run concurrent with the first degree murder conviction.
Defendants appealed.
II.
We turn first to the defendants' contention that the court
erred by denying the motion to suppress the out-of-court
identification by D.B. Defendants argue that this identification
12 A-4022-12T1
should have been suppressed because the police failed to record
the communications between the officers and D.B., and because the
show-up was unduly suggestive. We disagree.
When reviewing a motion to bar an out-of-court
identification, we focus on whether the findings could reasonably
have been reached on sufficient credible evidence in the record.
State v. Adams, 194 N.J. 186, 203 (2008). These findings "are
entitled to considerable weight." Ibid. (quoting State v. Farrow,
61 N.J. 434, 451 (1972)). We give deference to the findings that
"are substantially influenced by [the motion judge's] opportunity
to hear and see the witnesses and to have the 'feel' of the
case[.]" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State
v. Johnson, 42 N.J. 146, 161 (1964)).
"The admission of an unreliable out-of-court identification,
which resulted from impermissibly suggestive procedures[,]" is a
due process violation. State v. Smith, 436 N.J. Super. 556, 564
(App. Div. 2014). At the time of defendants' trial, New Jersey
followed the two-part standard articulated in Manson v.
Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977),
and adopted by our Supreme Court in State v. Madison, 109 N.J. 223
(1988). First, a court must decide whether the identification
procedure used was impermissibly suggestive. Manson, supra, 432
U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154; Madison,
13 A-4022-12T1
supra, 109 N.J. at 232. If the procedure was impermissibly
suggestive, the court "must then decide whether the objectionable
procedure resulted in a 'very substantial likelihood of
irreparable misidentification.'" Madison, supra, 109 N.J. at 232
(quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct.
967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). In other words,
"whether the impermissibly suggestive procedure was nevertheless
reliable by considering the totality of the circumstances and
weighing the suggestive nature of the identification against the
reliability of the identification." Adams, supra, 194 N.J. at 203
(quoting State v. Romero, 191 N.J. 59, 76 (2007)).
"Reliability is the linchpin." Madison, supra, 109 N.J. at
232 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253,
53 L. Ed. 2d at 154). An identification that is reliable may be
admissible despite an impermissibly suggestive nature. Ibid. In
assessing reliability, courts consider the opportunity of the
witness to view the accused at the time of the crime, the witness's
degree of attention at the time, the accuracy of a prior
description of the accused, the witness's level of certainty at
the time of the confrontation, and the time between the incident
and the confrontation. Id. at 239-40. These factors are weighed
against the corrupting effect of the suggestive identification.
Id. at 240.
14 A-4022-12T1
Defendants argue that the identification should have been
suppressed since the State failed to produce any recordings of the
communications between the police and D.B. Defendants claim that
this failure violated the holding in State v. Delgado, 188 N.J.
48 (2006). In Delgado, the Court "require[d], as a condition to
the admissibility of out-of-court identifications, that the police
record, to the extent feasible, the dialogue between the witnesses
and police during an identification procedure." Id. at 51. Police
must "make a written record detailing the out-of-court
identification procedure, including the place where the procedure
was conducted, the dialogue between the witness and the
interlocutor, and the results." Id. at 63. This language served
as the basis for Rule 3:11. Notwithstanding this requirement, the
lack of such important details may not result in a new trial.
Subsection (d) of Rule 3:11 provides for other remedies in the
event that the record is lacking for a detailed account of an out-
of-court identification procedure. R. 3:11(d).
Here, it is undisputed that the police failed to maintain a
written record of the exchange with D.B. or even a detailed
summary. The record only contains an incident report that notes
D.B. identified Miller. However, the testimony provided at the
Wade hearing was sufficient to overcome the lack of a written
record. The certainty in D.B.'s statements and corroboration from
15 A-4022-12T1
another witness provided the basis for the motion judge to find
that the procedures used were not impermissibly suggestive and
that the lack of the recording did not undercut the reliability
of the out-of-court identification.
Moreover, at trial, the State presented evidence linking
defendants to the crime. D.B. testified that he saw defendants
in the house, saw Miller outside the house, and pointed the first
responding police unit in the direction of the car that left the
scene. Very soon thereafter, D.B. identified Miller standing by
that car. In addition, the State's experts testified that the
same clothes Miller wore when leaving the scene contained blood
samples with the victim's DNA. The State's evidence further
buttressed D.B.'s already-reliable out-of-court identification.
We discern no basis warranting reversal.
III.
We have considered defendants' other contentions in light of
the record and applicable legal principles and conclude that almost
all are without sufficient merit to warrant extensive discussion
in a written opinion. R. 2:11-3(e)(2). We add only the following
comments.
Defendants argue that the trial court erred by failing to
charge the jury sua sponte with the lesser included offenses to
murder of aggravated and reckless manslaughter. At the jury charge
16 A-4022-12T1
conference, defendants did not request a charge on aggravated
manslaughter and failed to object to the jury charge on the
omission of the aggravated manslaughter charge.
We review this omission for plain error. See R. 1:7-2; R.
2:10-2. "Any error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have been
clearly capable of producing an unjust result[.]" R. 2:10-2. The
inquiry is whether the omitted charge was clearly capable of
producing an unjust result, or whether there is a reasonable doubt
that the jury would have reached a different verdict had the charge
been given. Since defendants did not request the charge or object
to its omission, the trial court was only required to provide the
charge "when the facts adduced at trial clearly indicate[d] that
a jury could convict on the lesser while acquitting on the greater
offense." State v. Jenkins, 178 N.J. 347, 361 (2004).
Furthermore, "[t]he court shall not charge the jury with
respect to an included offense unless there is a rational basis
for a verdict convicting defendant of the included offense."
N.J.S.A. 2C:1-8(e). The charge is not appropriate if it "would
invite the jury to engage in sheer speculation[.]" State v.
Darrian, 255 N.J. Super. 435, 446 (App. Div.) (citation omitted),
certif. denied, 127 N.J. 560 (1992); see also State v. Brent, 137
N.J. 107, 118 (1994).
17 A-4022-12T1
Aggravated and reckless manslaughter are lesser included
offenses to murder that are charged only when warranted. State
v. Ramsey, 415 N.J. Super. 257, 263-64 (App. Div. 2010), certif.
denied, 205 N.J. 77 (2011). Criminal homicide constitutes
aggravated manslaughter under N.J.S.A. 2C:11-4(a)(1) when "[t]he
actor recklessly causes death under circumstances manifesting
extreme indifference to human life[.]" Criminal homicide
constitutes reckless manslaughter under N.J.S.A. 2C:11-4(b)(1)
when "[i]t is committed recklessly[.]" An actor is reckless "when
he [or she] consciously disregards a substantial and unjustifiable
risk that" causes, in this instance, death. N.J.S.A. 2C:2-2(b)(3).
The trial judge commented that he did not "see any lesser
included offenses" and that any lesser included offenses did not
fit the facts of the case. We defer to this reasoning. Defendants
failed to make an objection, and there is no evidence in the record
to part from the inference that defendants intended to kill A.H.
For instance, the record does not establish that either defendant
knew A.H. prior to the shooting, or that the gun shots occurred
during a struggle. As such, we discern no plain error or prejudice
warranting reversal.
Miller further argues that the court improperly instructed
the jury on the crimes of attempted murder, aggravated assault,
and burglary. This argument is without merit. The court
18 A-4022-12T1
instructed the jury on these crimes with near verbatim recitations
of the Model Jury Charges. See Model Jury Charge (Criminal),
N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a) "Attempted Murder" (2011);
Model Jury Charge (Criminal), N.J.S.A. 2C:12-1(b)(4) "Aggravated
Assault" (2011); Model Jury Charge (Criminal), N.J.S.A. 2C:18-2(b)
"Burglary" (2011).
Defendants also contend that the State committed
prosecutorial misconduct during the summation by mischaracterizing
evidence and making several inflammatory statements. Defendants
argue these instances constituted reversible error and should have
resulted in a mistrial. We do not agree.
A prosecutor is limited in summation to commenting upon the
evidence and the reasonable inferences to be drawn therefrom.
State v. Feaster, 156 N.J. 1, 58-59 (1998). However, a prosecutor
has considerable leeway in presenting a summation. State v. Munoz,
340 N.J. Super. 204, 217 (App. Div.), certif. denied, 169 N.J. 610
(2001). Thus, prosecutors may vigorously and forcefully present
their closing argument. State v. Nelson, 173 N.J. 417, 460 (2002).
Prosecutorial misconduct in summation "will not serve as the basis
for reversal unless it was so egregious as to work a deprivation
of a defendant's right to a fair trial." Feaster, supra, 156 N.J.
at 59.
Here, none of the instances highlighted by defendants were
19 A-4022-12T1
so egregious so as to deprive them of their right to a fair trial.
The prosecutor either summarized prior evidence or provided fair
commentary and inferences deduced from the totality of the
evidence. In the rare instances at which the court sustained
defendants' objections, see, e.g., State v. Tilghman, 385 N.J.
Super. 45, 52-53 (App. Div.), certif. granted limited to sentence
and summarily remanded, 188 N.J. 269 (2006), the jury received
curative instructions. Neither defendant made an objection, and
we do not now find any plain error. State v. Bragg, 295 N.J.
Super. 459, 468 (App. Div. 1996) (citing to R. 1:7-2; R. 2:10-2).
Such a curative instruction occurred as a result of
defendants' motion for a mistrial. "Whether an event at trial
justifies a mistrial is a decision 'entrusted to the sound
discretion of the trial court.'" State v. Smith, 224 N.J. 36, 47
(2016) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert.
denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)).
Appellate courts "will not disturb the trial court's ruling on a
motion for a mistrial, absent an abuse of discretion that results
in a manifest injustice." Ibid. (quoting State v. Jackson, 211
N.J. 394, 407 (2012)). Alternative courses of action, including
a curative instruction, constitute "viable alternative[s] to a
mistrial, depending on the facts of the case." Ibid.; see State
v. Winter, 96 N.J. 640, 646-47 (1984). Here, the court provided
20 A-4022-12T1
the curative instruction to the jury. This instruction is an
acceptable alternative to granting a mistrial. And again, neither
defendant objected. Furthermore, the court's instruction made
clear to the jury that it should disregard the remark, even though
the instruction did not expressly say as much.
Finally, defendants contend that their sentences were
excessive as the court failed to properly weigh the aggravating
and mitigating factors. Appellate review of a defendant's sentence
is deferential, unless the sentencing court fails to follow the
Code of Criminal Justice and basic principles of sentencing
discretion. State v. Case, 220 N.J. 49, 65 (2014). The
deferential standard will prevail if the sentencing court
identifies and properly balances the supported aggravating and
mitigating factors, and the result "does not shock the judicial
conscience." Ibid. (quoting State v. Roth, 95 N.J. 365 (1984)).
Here, both defendants received life sentences, with approximately
sixty-three years of parole ineligibility. Though the court did
not find any applicable mitigating factors for either defendant,
it appropriately explained how it arrived at the decision. As
such, we affirm the sentences imposed.
Affirmed.
21 A-4022-12T1